Criminal Law and Procedure

Criminal Law and Procedure ESSAY QUESTIONS AND SELECTED ANSWERS FEBRUARY 2003 CALIFORNIA BAR EXAMINATION This publication contains the six essay questions from the February 2003 California Bar Examination and two selected answers to each question. The answers received good grades and were written by applicants who passed the examination. The answers were prepared by their authors, and were transcribed as submitted, except that minor corrections in spelling and punctuation were made for ease in reading. The answers are reproduced here with the consent of their authors and may not be reprinted. Question Number Contents Page 1. Civil Procedure 2. Wills/Real Property 3. Criminal Law & Procedure/Evidence 4. Professional Responsibility 5. Constitutional Law 6. Community Property QUESTION 3 Don was a passenger in Vic’s car. While driving in a desolate mountain area, Vic stopped and offered Don an hallucinogenic drug. Don refused, but Vic said if Don wished to stay in the car, he would have to join Vic in using the drug. Fearing that he would be abandoned in freezing temperatures many miles from the nearest town, Don ingested the drug. While under the influence of the drug, Don killed Vic, left the body beside the road, and drove Vic’s car to town. Later he was arrested by police officers who had discovered Vic’s body. Don has no recall of the events between the time he ingested the drug and his arrest. After Don was arraigned on a charge of first degree murder, the police learned that Wes had witnessed the killing. Aware that Don had been arraigned and was scheduled for a preliminary hearing at the courthouse on that day, police officers took Wes to the courthouse for the express purpose of having him attempt to identify the killer from photographs of several suspects. As Wes walked into the courthouse with one of the officers, he encountered Don and his lawyer. Without any request by the officer, Wes told the officer he recognized Don as the killer. Don’s attorney was advised of Wes’s statement to the officer, of the circumstances in which it was made, and of the officer’s expected testimony at trial that Wes had identified Don in this manner. Don moved to exclude evidence of the courthouse identification by Wes on grounds that the identification procedure violated Don’s federal constitutional rights to counsel and due process of law and that the officer’s testimony about the identification would be inadmissible hearsay. The court denied the motion. At trial, Don testified about the events preceding Vic’s death and his total lack of recall of the killing. 1. Did the court err in denying Don’s motion? Discuss. 2. If the jury believes Don’s testimony, can it properly convict Don of: (a) First degree murder? Discuss. (b) Second degree murder? Discuss. -18- Answer A to Question 3 1. Did the court err in denying Don’s motion? The issue here is whether the court properly denied Don’s motion to exclude evidence of the courthouse identification. Right to Counsel: Don’s first ground for having the identification evidence excluded is that the procedure violated his federal constitutional rights to counsel. Sixth Amendment: The Sixth Amendment of the US Constitution, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, affords citizens the right to counsel during all post-charge proceedings. The Sixth Amendment right to counsel only applies after a Defendant has been formerly charged. Here, Don was arraigned and therefore the Sixth Amendment right to counsel for his post-charge proceedings applies. Don is arguing that the identification should be excluded on the grounds that it violated his federal constitutional grounds that the identification procedure violated Don’s federal constitutional rights to counsel. However, Don’s attorney was present with him during the identification. Don is going to argue that they were not made aware of the identification and given an opportunity to object to it. His lawyer was told of the identification and its methods, however, it is unclear as to when the attorney was advised of this information. It seems more likely that he was told after the identification had already been made. However, the Sixth Amendment right to counsel does not apply to identifications of the suspect, since it’s not a proceedings for purposes of the Sixth Amendment right to counsel. Fifth Amendment: Miranda warning: Miranda warnings also afford the defendant of right to counsel. This right is to have an attorney present during all interrogation or questioning by the police. Miranda warnings are given to someone upon arrest. They include the right to remain silent and that everything said can be used in court against him, the right to have an attorney present and the right to have an attorney appointed by the court if the arrestee cannot afford one. [In] this case the right to counsel issue did not arise as a Miranda violation, since there was no questioning or interrogation of the police, and the Defendant has already been arraigned. -19- This case involves the Sixth Amendment right to counsel in all post charge proceedings. There are certain occasions where there is no right to counsel, for example, a photo identification of a suspect, taking of handwriting or voice samples, etc. Because the identification of a suspect by a witness does not afford the Si[x]th Amendment right to counsel, and because Don’s lawyer was actually present with him during the identification, the court was probably correct in denying Don’s motion to exclude the evidence on this ground. Due Process: Don’s second ground for having the identification evidence excluded is violation of due process of law. Identification The police may use different methods wherein witnesses can identify suspects as the crime doer. These methods include photo identification, lineups and in-court identifications. The identification process must be fair to the suspect and not involve prejudice and therefore not violate his due process rights. For example, the lineup must include others of similar build and appearance as the suspect. The police in this case were going to have the Wes [sic]identify Don (or the murderer) through photo identification. However, they took him to the courthouse knowing that Don was having his preliminary hearing that day. The photo lineup did not have to be at the courthouse, in fact it is usually at the police station. This questions the officers’ conduct and intent. Don is going to argue that this was done with the express purpose of having Wes see him at the hearing and associate him to the crime. This is prejudicial to Don and a possible due process violation. The police will argue that it was mere coincidence that they ran into Don in the courthouse and that their intent was to have Wes identify the murderer [sic] through a photo identification. They will further argue that Wes told the officer he recognized Don as the killer without any request by the officer. Therefore his identification was spontaneous and not prompted. Therefore it did not violate Don’s due process rights. However it is very suggestive to a witness to see a defendant charged with the crime and make the identification that way. If Wes had identified Don independent of that situation then the identification would have been valid and there would be no due -20- process violation. However, that was Wes’ first and only identification of Don, and Don is going to argue that it was prejudicial and violated due process of law. Officer’s testimony Don is further claiming in his motion to exclude that the officer testifying to the identification would be inadmissible hearsay. Relevance: For any testimony or evidence to be admitted it must first be relevant. Here the officer’s testimony will be established as relevant since it involves a witness’ identification of the defendant as the murderer. Hearsay: Hearsay is an out-of-court statement made by a declarant that goes to the truth of the matter asserted. Hearsay is inadmissible generally because of the Defendant’s right to confront and cross-examine witnesses. The officer is going to testify that he heard Wes tell him that he recognized Don as the killer. The statement was made out of court and goes directly to prove that Don is the killer. Therefore officer’s testimony is hearsay. The question then is, is it admissible hearsay? There are exceptions to the hearsay rule depending on whether the declarant is available or unavailable to testify. There is no indication whether Wes is available or unavailable so we must look at the possible exceptions to the hearsay rule. Present Sense Impression: Present sense impression is an exception to hearsay. This is when a declarant is expressing a present impression at that moment without an opportunity to reflect. The State will argue that Wes, upon seeing Don, merely expressed that he recognized him as the murderer. It was an impression at the present he was expressing. However this exception will probably not apply in this case since [sic]. State of Mind: The state of mind exception is a statement by the declarant that reflects the declarant’s state of mind. For example, if the declarant said he was going to Las Vegas this weekend, that statement would be admissible to show that defendant intended on going to Las Vegas for the weekend. This is an exception to hearsay and would be admissible. The state of mind exception does not apply to this case. Excited Utterance: A statement made when the declarant is an excited state caused by -21- an event and has not had a chance to cool down.

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